Opinion
2:16-CV-0115
06-17-2016
JAMES NORMAN SHAFFER, PRO SE, TDCJ-CID No. 00521260, Plaintiff, v. Warden BARRY L. MARTIN, Assistant Warden JAMES BEACH, Grievance Officer MARK ROTH, Correctional Officer THOMAS E. IBISON, and Correctional Officer BRENDA SLIGER, Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff JAMES NORMAN SHAFFER, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, section 1983 complaining against the above-named defendants and has been granted leave to proceed pursuant to Title 28, United States Code, section 1915.
Plaintiff claims that, on August 14, 2014, he was placed in prehearing detention and his property was inventoried and stored. Plaintiff states defendant CO IBISON inventoried his property and allowed other inmates to steal plaintiff's property. Plaintiff alleges defendant CO SLIGER witnessed the inventory and signed the sheet as a witness. Plaintiff says when he got out of prehearing detention and his property was returned, he noticed about $350.00 worth of it was missing. Plaintiff has presented a list of the missing items as an attachment to his Complaint. Plaintiff alleges he wrote to the Property Officer, Mrs. Wages, and she responded to his complaint by saying she did not have any of his missing property. Plaintiff's grievances on the matter were denied by defendant BEACH at Step One and defendant ROTH at Step Two. Plaintiff alleges defendant Warden MARTIN's employees allowed other inmates to steal plaintiff's property.
Plaintiff requests an award of $700.00 to reimburse him for the $350.00 value of his missing property and the $350.00 filing fee for bringing this action in federal court.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or from an officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire."). --------
The District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
For negligent or random, unauthorized deprivations of the sort described by plaintiff, Texas provides an adequate post-deprivation remedy by way of a civil action in tort for conversion. Murphy v. Collins, 26 F.3d 541, 543-44 (holding that, in Texas, the tort of conversion is an adequate post-deprivation remedy); Thompson v. Steele, 709 F.2d 381, 383 (5th Cir.1983) (holding that a state action for damages is an adequate remedy), cert. denied, 464 U.S. 897, 104 S.Ct. 248, 78 L.Ed.2d 236 (1983). Plaintiff has come to federal court with a claim that can only be asserted in a state court. For that reason, plaintiff's claim against defendants IBISON and SLIGER lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
As to plaintiff's claim against defendants BEACH and ROTH for failing to satisfactorily resolve plaintiff's Step One and Step Two grievances, the narrowing of prisoner due process protection announced in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), leaves plaintiff without a federally-protected right to have his grievances investigated and resolved. Any right of that nature is grounded in state law or regulation and the mere failure of an official to follow state law or regulation, without more, does not violate constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). Plaintiff's claim against defendants BEACH and ROTH lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Plaintiff claims defendant Warden MARTIN's "employees allowed other inmates to steal [plaintiff's] property." Section 1983 imposes liability for deprivation of constitutionally protected rights, not for violations of tort duties of care. Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990); see, also, Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986)(inmate slipped on pillow left on stairs). A civil rights plaintiff must establish a causal connection between the acts or omissions of the defendant and the resultant constitutional deprivation. Reimer v. Smith, 663 F.2d 1316, 1323 (5th Cir. 1981). This may be done by alleging either active participation by the defendant in the actions causing the deprivation of the plaintiff's constitutional rights or affirmative adoption by the defendant of policies which were wrongful or illegal and which caused the constitutional deprivation. Wanger v. Bonner, 621 F.2d 675, 679 (5th Cir. 1980). Theories of vicarious liability, such as respondeat superior, cannot support a cause of action under section 1983. Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). Plaintiff's allegation against defendant MARTIN fails to state a claim on which relief can be granted.
CONCLUSION
Pursuant to Title 28 U.S.C. sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1),
IT IS HEREBY ORDERED that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff JAMES NORMAN SHAFFER is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
A copy of this Order shall be mailed to plaintiff and to any attorney of record by first class mail. The Clerk shall also mail copies of this Order of Dismissal to TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, TX 78711; and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
It is SO ORDERED.
Signed this the 17th day of June, 2016.
/s/_________
MARY LOU ROBINSON
United States District Judge